https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7410

Onyango v Ambe (Civil Case 174 of 2018) [2026] KEHC 7410 (KLR) (Civ) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 7410 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 174 of 2018 SN Mutuku, J May 20, 2026 Between Cyllus Godfrey Onyango Applicant and Dr. Selina Vukinu Ambe Respondent Ruling The Application 1.Cyllus Godfrey Onyango, the Applicant, has filed this Notice of Motion dated 16th January 2026 (the Application), basing it on Order 45 Rule 1 of the Civil Procedure Rules (CPR), Sections 1A, 1B, and 3A of the Civil Procedure Act (CPA) against Dr. Selina Vukinu Ambe (the Respondent). The Applicant is seeking the orders listed below:i.Spent.ii.Spent.iii.That this Honourable Court be pleased to order a stay of execution of the Judgment dated 24th May 2024 and all consequential orders pending the hearing and final determination of the instant application.iv.That this Honourable Court be pleased to make an order for review and variation of orders given vide judgment dated and delivered on 24th May 2023 against the Applicant.v.That upon review, the Judgment entered against the Applicant for defamation be vacated and the suit against the Applicant be dismissed with costs.vi.That the costs of this application be provided for 2.The Application is supported by the grounds found on its face and contained in the Supporting Affidavit of the Applicant. In summary, the Applicant has deposed that judgment was entered against him in favour of the Respondent in this matter on 24th May 2023 in which, damages payable by the Applicant to the Respondent were assessed at Kshs 2,000,0000; that the said judgment is erroneous in law and fact for reasons that this Honourable Court failed to consider that the Respondent did not meet the threshold of a defamation claim and that the alleged defamatory statement did not refer to the Respondent but was a contribution towards a general discussion in a WhatsApp group. 3.The Applicant deposed, further, that this Honourable Court, in a similar case filed by the Respondent herein against a different person (Milimani MCCC/61/2021: Dr. Selina Vukinu Ambe v. Isaac Odhiambo Ooko) found that the elements of defamation were not met due to the absence of express reference or identification of the Respondent. He has stated that this Honourable Court failed to properly consider the context in which the statement was made; that the statement was made within the flow of an ongoing conversation in a WhatsApp group and not as a statement directed at or intended to target the Respondent. Replying Affidavit 4.The application is opposed by the Respondent through her Replying Affidavit sworn on 17th February 2026. The Respondent has raised the grounds in opposition that(a)the Applicant is inviting this Court to sit on appeal on its own judgment;(b)the Applicant’s application to file an appeal out of time has been dismissed by the Court of Appeal;(c)the application does not meet the threshold for review. 5.The Respondent has deposed that this court cannot sit on appeal on its own judgment delivered on 24th May 2023 and that the applicant ought to have filed an appeal at the Court of Appeal; that a party cannot pursue both the appeal and review and that the Applicant’s application to file an appeal out of time was dismissed. The Respondent stated, further, that there are no grounds for review because the Applicant has not demonstrated the existence of new and important evidence, error apparent on the face of the record or any other sufficient reason. Parties’ submissions 6.The application was canvassed through written submissions. In his submissions, the Applicant submitted on one issue: whether this Honourable Court should grant an order of the review of the judgment dated 24th May 2023. 7.The Applicant has invoked section 80 CPA. He is basing his arguments on the ground of sufficient reason in seeking the order for review. He has argued that this court found the elements of defamation were met in relation to a similar case concerning the same WhatsApp group and the Respondent against another person. 8.The Applicant relied on Milimani HCCC No. 172 of 2018 Selina Vukinu Ambe v Fernades Sagero (2021) eKLR in which the suit was dismissed for failure of the Plaintiff in that case to meet the threshold. He submitted that a party is entitled to select the remedies to pursue and that he is entitled to pursue review even where an appeal was contemplated. He relied on Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 others [2020] eKLR to support the above point. 9.He further relied on Pancras T. Swai v Kenya Breweries Limited [2014] eKLR to support his submission that the right to apply for review is an unfettered statutory right that is not subordinate to the appellate process. He submitted that a review is a separate and independent proceeding from an appeal; that since his application for extension of time to appeal was dismissed on the basis of procedural delay and not on merit, this Court retains the full powers to review the substantive injustice caused by the conflicting judgments in the cases cited above. 10.On the other hand, the Respondent has similarly referenced Order 45 CPR and Section 80 CPA on the issue of review. The Respondent further cited the decision in Accredo Ag & 3 others v Steffano Uccelli & another [2017] KECA 85 (KLR) where the court reaffirmed the grounds for review and submitted that a party cannot simultaneously pursue an appeal and a review; that in this context, the Applicant purported to file an appeal out of time against the impugned judgment and is now attempting to review the same and therefore, the Applicant’s instant Motion is a non-starter. She contended that the instant Motion has not established the elements for a review; rather, it is merely a means for the Applicant to re-argue his case before a court of concurrent jurisdiction. Further, that the mere fact that a different decision was rendered by a separate court does not in and of itself constitute a proper ground for review. 11.The Respondent cited National Bank of Kenya Ltd v Ndungu Njau (Civil Appeal No. 211 of 1996) where the Court observed that:“A review may be granted wherever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evidence and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law/ misconstruing a statute or other provisions of law cannot be a ground for review.” 12.The Respondent has urged that the instant application be dismissed with costs. Analysis and determination 13.I have considered the application and the grounds in support as well as the Replying Affidavit in opposition. I have considered the submissions of the parties. I have noted the issue raised by the Respondent that the instant Application is a non-starter for the reason that the Applicant initially sought to file an appeal against the impugned judgment and is now seeking a review of the same. The record shows that following delivery of the impugned judgment on 24th May 2023, the Applicant filed an application dated 11th July 2024 before the Court of Appeal, being Civil Application No. E359 of 2024, seeking an extension of time to enable him lodge an appeal out of time. The Court of Appeal dismissed the said application on 28th March 2025. 14.The record discloses that the Applicant subsequently filed a Reference before a three (3)-Judge Bench at the Court of Appeal, challenging the aforesaid decision. Upon consideration thereof, the learned Appeal Judges dismissed the Reference through their decision rendered on 19th December, 2025. There is therefore no substantive appeal filed in this matter. To my mind, there is nothing to bar the Applicant from filing this instant application. 15.On the merits of the Application, I have read section 80 CPA and Order 45 CPR on the applicable principles for review. These principles for review are that:“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 16.Drawing from the above provisions, it is evident that the following are the instances in which a court can review a decision:a)the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, orb)some mistake or error apparent on the face of the record, orc)any other sufficient reason. 17.From my careful study reading of the application, the Supporting Affidavit and submissions of the parties, it is clear that the Application rides on the element of ‘any other sufficient reason.’ In that regard, reference is made to the case of Ajit Kumar Rath v State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 where the Supreme Court of India pronounced itself in the manner hereunder:“The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ..... means a reason sufficiently analogous to those specified in the rule.” 18.To my mind, from a careful reading of the above authority, it is clear that the element of ‘any other sufficient reason’ ought to be comparable to the preceding elements for review. This is to say that “the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or the order made, or some mistake or error apparent on the face of the record” are sufficient reasons for review and “any other sufficient reason” relied on by an applicant, must meet that criterion. 19.In this matter, my understanding is that the Applicant is basing his argument on “any other sufficient reason” on the argument that the learned Judge; in arriving at her decision did not take into account the factor that the impugned statement did not make specific reference to the Respondent and that separate courts in the cased reference in this ruling, arrived at different findings on matters arising from the same facts as those presented in the present suit. 20.It is my consider4ed view that the Applicant is purporting to re-open and re-argue the present suit and in so doing, he is essentially asking this court to re-examine and re-analyse the pleadings, material and evidence previously tendered at the trial and arrive at a conclusion that is supported by his arguments in this application. It is akin to asking this Court to sit on appeal on a matter decided by a court of concurrent jurisdiction, which is against the applicable legal principles. 21.Secondly, and on the subject of varying decisions previously rendered in the separate matters earlier referenced, I am of the considered view that notwithstanding the fact that the subordinate court in Milimani MCCC No. 61 of 2017 – Dr. Selina Vukinu Ambe v Isaac Odhiambo Ooko dismissed the Respondent’s case against the Civil Suit No. 174 of 2018, the High Court is not bound by decisions and findings emanating from the subordinate court. In any event, the record shows that the Applicant fully and actively participated in the aforementioned suit as well as the present suit. 22.Further, the mere fact that a court of concurrent or subordinate jurisdiction arrived at a different finding in a separate matter arising from similar or related facts does not, in my view, constitute a proper ground for review. 23.It is my finding, therefore, after due consideration of the case by the parties, that the Applicant in this instance has not demonstrated that he deserves the orders for review he is seeking. He has failed to meet the threshold set under Section 80 CPA and Order 45, Rule 1 CPR, warranting or necessitating a review of the aforesaid judgment. 24.In respect of the prayer for stay of execution sought under prayer (c) of the Application, I need not spent time on the issue for the reasons that this court has already pronounced itself on the issue of stay of execution in the Ruling delivered on 1st December 2025. To my mind, the Applicant is abusing the process of this court by filing similar applications even after this court has determined the same issue. 25.Consequently, it is my finding, and I so hold, that the Notice of Motion dated 16th January 2026 lacks merit and is hereby dismissed with costs to the Respondent. This file was closed on 1st December 2025 and should remain so closed. 26.It is so ordered. DATED, SIGNED AND DELIVERED THIS 20TH DAY OF MAY 2026.S. N. MUTUKUJUDGE